DOCSLIB.ORG

Competition Policy Supporting the Green Deal Our Call for a Sustainable Competition Policy

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Competition Policy Supporting the Green Deal Our Call for a Sustainable Competition Policy November 2020 Competition policy supporting the Green Deal Our call for a sustainable competition policy CLIENTEARTH.ORG Competition policy supporting the Green Deal November 2020 Contents Executive summary ................................................................................................................... 3 Introduction ................................................................................................................................ 5 1 General remarks ................................................................................................................ 6 1.1 Regulation and competition policy ............................................................................... 6 1.2 Internal market, sustainable development and consumer welfare............................... 7 2 State aid control ................................................................................................................ 8 2.1 Question 1: Main changes required to the State aid rulebook ..................................... 9 2.1.1 Consistency with EU constitutional principles and Green Deal objectives ........ 9 2.1.2 Systematic control of compliance of activities with environmental law ........... 10 2.1.3 A greener State aid agenda for the Western Balkans ..................................... 11 2.1.4 Enhanced procedural rules for a smoother decision-making .......................... 12 2.2 Question 2: Less aid to harmful activities .................................................................. 16 2.2.1 Question 2.a: comments on Commission’s stances ....................................... 16 2.2.2 Call for a revised assessment of aid to harmful activities ............................... 17 2.2.3 Call for a proper assessment of environmental impacts ................................. 18 2.2.4 Phase out of aid to fossil fuels ........................................................................ 20 2.2.5 Other heavily polluting industries .................................................................... 24 2.3 Question 3: tools for better supporting environmental objectives .............................. 27 2.3.1 Question 3.a: on the principle and definition of a green bonus ....................... 27 2.3.2 Question 3.b: on the criteria that should inform the assessment of a green bonus .............................................................................................................. 28 2.4 Question 4: How to define positive environmental benefits? Is the EU Taxonomy for sustainable activities an adequate reference? .......................................................... 29 3 Antitrust rules .................................................................................................................. 31 3.1 Addressing environmentally harmful cooperation ...................................................... 31 3.1.1 Addressing greenwashing .............................................................................. 33 3.1.2 Availability of existing tools to capture harmful agreements (fines) ................ 34 3.2 Questions 1 & 3: Cooperation between undertakings and justifying restrictive agreements under the auspices of the Green Deal ................................................... 35 3.2.1 Many sustainability agreements do not or are unlikely to restrict competition 36 1 Competition policy supporting the Green Deal November 2020 3.2.2 A different interpretation of article 101(3) TFEU provides sufficient room to exempt certain sustainability agreements ....................................................... 37 3.3 Question 2: Need for clarifying the rules and providing guidance ............................. 41 3.3.1 Clarifications and comfort should be given on characteristics of agreements that serve the Green Deal............................................................................... 41 3.3.2 Clarifications and comfort can be given in different forms .............................. 42 4 Merger control ................................................................................................................. 44 4.1 Question 1: Mergers reducing environmentally-friendly choices ............................... 44 4.2 Question 2: Improvements required to merger control .............................................. 45 Annex: Recommendations for revising certain State aid guidelines .................................. 47 1 Guidelines on State aid for environmental protection and energy ............................. 47 Capacity mechanisms ....................................................................................................... 47 Biomass ............................................................................................................................. 47 Renewable energy communities ........................................................................................ 48 Hydrogen ........................................................................................................................... 50 Energy-efficiency-first principle .......................................................................................... 51 Energy infrastructure ......................................................................................................... 51 2 Regional Aid Guidelines ................................................................................................. 52 3 RDI Framework ................................................................................................................ 52 4 State aid and subsidies for fisheries ............................................................................. 54 2 Competition policy supporting the Green Deal November 2020 Executive summary ClientEarth welcomes the Commission’s call for contributions on how competition policy can support the Green Deal. This alignment is necessary since, so far, competition policy primarily focussed on distortions of competition in the internal market without considering environmental negative externalities of economic activities and without having much regards to the social and environmental dimensions of sustainable development. Competition policy should be rethought and reshaped in accordance with overarching principles of the EU treaties, such as Article 3 TUE, Article 11 TFEU and Article 37 EU Charter of Fundamental Rights that call for a consistent, coherent and integrated approach of environmental concerns across all Union policies. Such rethinking does not need to be revolutionary in antitrust and mergers policies. In antitrust, the Commission has, yet underuses, the legal tools at its disposal to embrace cooperation agreements that genuinely improve sustainability and innovation, as well as to sanction those agreements that are detrimental to the environment and consumers. Contrary to the perception, ClientEarth wishes to stress that numerous forms of cooperation between undertakings do not or are unlikely to restrict competition. For those sustainability agreements restricting competition, ClientEarth believes there is room to exempt truly sustainable projects benefitting consumers provided the Commission (i) adopts a broader interpretation of the term “consumer” and (ii) departs from a strict economic approach to assess improvement and progress, thereby allowing environmental benefits to be taken fully into account. In addition, in order to close the current guidance gap and avoid national guidance disparities, we call on the Commission to provide additional comfort and guidance. We suggest different types of instruments, which can be combined, to add to the toolbox. Finally on antitrust, ClientEarth wishes to draw the attention to the Commission’s important role in addressing environmentally harmful cooperation between undertakings, by taking into account environmental considerations when setting fines as well as by putting in place safeguards against “greenwashing”, an increasing practice that undermines competition in the internal market. With respect to merger control, ClientEarth similarly believes that the Commission has the tools to support the objectives of the Green Deal. When assessing the compatibility of a merger, the Commission can undoubtedly consider the environmental impact and rely on a broader consumer welfare standard, which increases the scrutiny for unsustainable mergers. In addition, we suggest to amend the legitimate interest clause to encompass sustainability goals. A deeper reflection on State aid policy is nevertheless required, if the Union has the ambition to drive the achievement of the Green Deal objectives, for itself and for the Member States, and act according to its “do no harm” oath. This is because whilst the State aid framework could be a powerful tool to support the energy transition and the Green Deal objectives, it fails to limit environmentally harmful aid so far. In the context of global warming and with the pursuit of the 2050 climate neutrality objective, fossil fuel subsidies must simply end. These also prevent other innovative and cleaner technologies to be deployed, as fossil fuel producers are monopolising funding resources to remain competitive on the market. We thus recommend that State aid guidelines or notices mention explicitly that aid to fossil fuels cannot be found compatible with the internal market because of their incompatibility with the decarbonisation objectives. 3 Competition policy supporting the Green Deal November 2020 Similarly, the State aid rules should
Load more

Recommended publications
  • We Are an Organisation of Activist Lawyers Committed to Securing A
    We are an organisation Trustees’ Report of activist lawyers 2010 committed to securing a healthy planet Contents Achievements in 2010 ................................................................................................................. 4 Message from the Chair ............................................................................................................ 6 Message from the CEO .............................................................................................................. 8 An overview of ClientEarth in 2010 ................................................................................... 10 Our areas of work .......................................................................................................................... 12 Biodiversity .................................................................................................................................... 14 Climate and Energy ................................................................................................................... 16 Climate and Forests ................................................................................................................... 20 Access to Justice .......................................................................................................................... 22 Corporate Transparency .......................................................................................................... 24 Health and the Environment ...............................................................................................
    [Show full text]
  • Revision of the State Aid Guidelines for Environmental Protection and Energy and Exemption Rules Making the EEAG and GBER Fit for Europe’S Carbon Neutrality
    January 2021 Revision of the State Aid Guidelines for Environmental Protection and Energy and exemption rules Making the EEAG and GBER fit for Europe’s carbon neutrality CLIENTEARTH.ORG Revision of the State Aid Guidelines for Environmental Protection and Energy and exemption rules January 2021 1 General recommendations ............................................................................................... 4 1.1 Transform the EEAG into true instruments of environmental protection ..................... 4 1.2 Place aid in the energy sector under the overarching EE1st principle ........................ 6 1.3 Making the EEAG future-proof .................................................................................... 7 2 Response to the Questionnaire ........................................................................................ 8 2.1 Comments on the introduction .................................................................................... 8 2.2 Question 23: should aid be allowed for the following areas? ...................................... 9 2.2.1 Renewable electricity ........................................................................................ 9 2.2.2 Renewable and low carbon hydrogen production ........................................... 13 2.2.3 Alternative transport fuel (other than hydrogen) ............................................. 15 2.2.4 Combined Heat and Power (CHP) .................................................................. 15 2.2.5 Renewable heating ........................................................................................
    [Show full text]
  • Laying the Regulatory Foundations for Carbon Capture and Storage in the EU a Legal Review of the Draft European Directive on Geological Storage of Carbon Dioxide
    Laying the Regulatory Foundations for Carbon Capture and Storage in the EU A Legal Review of the Draft European Directive on Geological Storage of Carbon Dioxide October 2008 About ClientEarth ClientEarth is a dynamic non‐profit law, science and policy organisation based in London and Brussels. The organisation is composed mainly of activist lawyers working at the EU level and in the Member States. We bring together law, science, economics and politics to develop legal strategies which address the big environmental challenges. Our mission is to bring dedicated legal expertise to the environmental movement across Europe. We operate by monitoring existing laws, developing policy, lobbying for effective legislation and, where necessary, pursuing strategic litigation. We act as legal advisors to non‐governmental organisations as well as MPs, MEPs and policy makers in the EU, the UK and other Member States. ClientEarth works across the environmental agenda, and has programmes on climate and energy, environmental justice and marine protection. The work of ClientEarth is funded entirely by charitable foundations and individuals. www.clientearth.org Brussels London Bd. Emile Jacqmain 90 3 Chapel Place Bruxelles 1000 London EC2A 3DQ About this report This report was written by Karla Hill and Ranak Pandya with input from James Thornton, Tim Malloch and Marta Ballesteros. This report was prepared with funding and support from the European Climate Foundation. This report was published in October 2008 and is available from www.clientearth.org. Please contact Karla Hill for further information. Acknowledgements The analysis in this report benefited from discussions with colleagues at the European Climate Foundation, Bellona, E3G, McKinsey and Company, and University College London’s Carbon Capture Legal Programme.
    [Show full text]
  • FOR the YEAR ENDED 31 DECEMBER 2014 CLIENTEARTH COMPANY LIMITED by GUARANTEE LEGAL and ADNIINISTRATIVE Inforigiation
    Charity Registration No. 1653988 Company Registration No. 2863827 (England and Wales) CLIENTEARTH COMPANY LIMITED BY GUARANTEE CONSOLIDATED FINANCIAL STATEMENTS FOR THE YEAR ENDED 31 DECEMBER 2014 CLIENTEARTH COMPANY LIMITED BY GUARANTEE LEGAL AND ADNIINISTRATIVE INFORIgiATION Trustees W Mcintosh M Stanley H Covington B Eno P Harvey S Hockman P Joubert M Mcintosh M Robert F Serfaty The Honorable E Young S Butler-Sloss Secretary BWB Secretarial Limited Charity number 1053988 Company number 2863827 Principal address The Hothouse 274 Richmond Road London E8 3QW Registered office 2-6 Cannon Street London EC4M 6YH UK Auditors Arram Berlyn Gardner LLP 30 City Road London EC1Y 2AB CLIENTEARTH COMPANY LIMITED BY GUARANTEE CONTENTS Page Trustees' report Statement of trustees' responsibilities 16 Independent auditors' report Statement of financial activities 19 Balance sheets (Group and Parent) 20-21 Notes to the accounts 22-35 CLIENTEARTH COMPANY LIMITED BY GUARANTEE TRUSTEES' REPORT FOR THE YEAR ENDED 31 DECEMBER 2014 The trustees (who are also the directors of ClientEarth for the purposes of company law) present their report and accounts for the period ended 31 December 2014. The accounts have been prepared in accordance with the accounting policies set out in note 1 to the accounts and comply with the Companies Act 2006 and the Statement of Recommended Practice, 'Accounting and Reporting by Charities', issued in March 2005. Objectives and activities The charity's objects are: ~ To promote and encourage the enhancement, restoration, conservation
    [Show full text]
  • A Review of UK-Listed Companies' Climate Change
    February 2021 Accountability Emergency A review of UK-listed companies’ climate change-related reporting (2019-20) 2 ClientEarth A future in which people and planet thrive together isn’t just possible: it’s essential. We use the power and rigour of the law to create it; informing, implementing and enforcing legislation, training legal and judicial professionals, and proposing policy. Our programmes of work span two broad categories: climate and pollution, and protection of nature. Our climate and pollution efforts defend our rights to a healthy existence. We force governments around the world to uphold their commitment to the Paris Agreement, decarbonise energy and tackle pollution hazardous to human and environmental health. Our nature protection work fights on behalf of vital ecosystems upon which we depend: forests, oceans and wildlife. We push for ambitious new legal protections and radical reforms to industry, and hold lawbreakers to account. ClientEarth’s Climate Finance Initiative carries out research, analysis and advocacy to accelerate action by actors across the financial sector to better integrate climate change-related risks and impacts into their business and investment decision-making, and to align their activities with the goals of the Paris Agreement. Acknowledgements ClientEarth would like to acknowledge the extensive support of the law firm Hausfeld & Co LLP in assisting with the analysis of the company Annual Reports used in preparing this Report. Disclaimer This Report is not offered as advice on any particular matter and must not be treated as a substitute for specific advice. In particular, information in this publication does not constitute legal, professional, financial or investment advice.
    [Show full text]
  • Mr Frans Timmermans, Executive Vice-President, European Commission Rue De La Loi / Wetstraat 200 1049 Brussels
    To: Mr Frans Timmermans, Executive Vice-President, European Commission Rue de la Loi / Wetstraat 200 1049 Brussels CC: Ms Kerstin Jorna, Director General of DG GROW Ms Florika Fink-Hooijer, Director General of DG ENV Brussels, 24 February 2021 Regarding: Civil society calls on the European Commission to secure an ambitious EU- wide restriction of intentionally added microplastics without further delay Dear Executive Vice-President, We, the undersigned organisations from across Europe representing millions of citizens, are urging the Commission to present an ambitious proposal to restrict intentionally added microplastics under REACH, following the European Chemicals Agency (ECHA)’s Annex XV report published today. As part of the EU Plastics Strategy, the European Green Deal and its related New Circular Economy Action Plan, you have pledged to address microplastic pollution through a wide restriction that would have the potential to reduce the amount of microplastics released to the environment in the EU by about 500 000 tonnes over 20 years. ECHA and its scientific committees have recognised that microplastics and nanoplastics pose an unacceptable risk to the environment, with possible consequences for humans, and that it justifies an EU-wide restriction. Now that the ball is in the Commission’s court, we call you to champion an ambitious restriction proposal that:1 ● Covers all intentionally added microplastics across sectors and uses, as proposed by ECHA, and that includes nanoplastics; ● Addresses the weaknesses of ECHA’s initial proposal, including by: 1 You can find more detailed argumentations and recommendations in our position paper, and short briefing ○ Refusing any derogations that would undermine the restriction’s objective or lack sound justification, e.g.
    [Show full text]
  • By Email ([email protected])
    12 April 2021 60 Rue du Trône (3ème étage), Box 11, Ixelles, 1050 Bruxelles, Belgique Christine Lagarde President of the European Central Bank European Central Bank 60640 Frankfurt am Main Germany By email ([email protected]) Copied to Chiara Zilioli, Director General, DG Legal Services, European Central Bank Dear President Lagarde The ECB’s Monetary Policy Strategy Review: corporate sector asset purchases, climate change and the ECB’s legal obligations ClientEarth AISBL is an international non-profit making, non-governmental organisation that uses the power of the law to protect people and the planet (ClientEarth). We write to you in your capacity as a member of the ECB’s Executive Board and against the backdrop of the ECB’s Monetary Policy Strategy Review (Strategy Review), which is currently underway. We have commenced litigation in the Belgian courts challenging the Belgian National Bank’s (BNB) implementation of the ECB’s Corporate Sector Purchase Programme (CSPP) and seeking a preliminary reference to the Court of Justice of the European Union questioning the validity of the ECB’s decision establishing the CSPP in 2016 (CSPP Decision).1 We do so in the belief that the CSPP Decision is invalid and that the BNB’s implementation of the CSPP Decision is illegal for breach of the ECB and BNB’s legal obligations to take into account environmental protection requirements, specifically in relation to climate change, when establishing and implementing the CSPP.2 Numerous studies have found a structural bias within the CSPP and the corporate asset purchases under the Pandemic Emergency Purchase Programme (PEPP) (together, the ECB’s corporate asset purchase programmes) towards greenhouse gas-intensive companies, with significantly over half of the assets purchased being issued by GHG-intensive sectors.3 The 1 Decision (EU) 2016/948 of the ECB of 1 June 2016 on the implementation of the corporate sector purchase programme (ECB/2016/16).
    [Show full text]
  • 2019-11-27-Fake-Ce-En.Pdf
    Aan de leden van de Eerste Kamer Der Staten-Generaal Postbus 20017 2500 EA den Haag Date 21 November 2019 Subject Uniper ISDS threat regarding the ‘wet verbod op kolen bij energieproductie 35.167’ We welcome the proposed law banning the burning of coal for power generation (‘Law 35.167’) which is a central part of the Dutch government’s plans to meet its climate goals. In early September 2019, Uniper Benelux CEO Hans Schoenmakers threatened1 to sue the Dutch state under the Energy Charter Treaty (‘ECT’) if the Eerste Kamer adopts the law. Uniper’s potential claim concerns the 1.7 billion euros investment the company made in 2007 in the Maasvlakte Power Plant 3 (‘MPP3’). The plant started operating in 2016. The new law will prohibit MPP3 to burn coal by 2030. The Uniper CEO claimed the company is “de facto expropriated without compensation”. In addition, Uniper’s main shareholder Fortum stated that “[t]he International Energy Charter Treaty protects the rights of companies in the event of unilateral regulatory changes".2 The ECT is an investment treaty that permits foreign investors to directly claim compensation for government action that may affect their investment before private international tribunals - the Investor-State Dispute Settlement (‘ISDS’) mechanism. The very public way in which both Uniper and Fortum made these statements before the measure is even passed show the potential for a chill on legitimate climate protection measures. The sweeping allegations made by Uniper may seemingly have a basis in the ECT, but they are fundamentally flawed. The legal opinion attached to this letter demonstrates how the Uniper’s claims are legally unfounded.
    [Show full text]
  • 1 Complaint Against BP in Respect of Violations of the OECD Guidelines
    Complaint against BP in respect of violations of the OECD Guidelines Complainant: ClientEarth Fieldworks 274 Richmond Road Martello St Entrance London E8 3QW Company: BP p.l.c. 1 St James’s Square London SW1Y4PD NCP: UK National Contact Point for the OECD Guidelines for Multinational Enterprises Department for International Trade 3 Whitehall Place London SW1A 2AW Contact Persons: Sophie Marjanac, Climate Accountability Lead, ClientEarth ([email protected]) Sam Hunter Jones, Lawyer, ClientEarth ([email protected]) Tim Cooke-Hurle, Barrister, Doughty Street Chambers ([email protected]) ClientEarth is an environmental law charity that has staff in London, Brussels, Warsaw, Madrid, Beijing, Berlin and Luxembourg, and works to enforce laws for the protection of the environment around the world. 1 INTRODUCTION AND BACKGROUND ............................................................................... 6 1 Executive summary ........................................................................................................ 6 2 The Parties .................................................................................................................... 10 2.1 The Complainant .............................................................................................. 10 2.2 The Company ................................................................................................... 11 2.3 The UK NCP ...................................................................................................
    [Show full text]
  • Environment and Climate Change Law Review
    Change Law Review Law Change the Environment and Climate Climate and Environment Environment and Climate Change Law Review Third Edition Editor Theodore L Garrett Third Edition Third lawreviews © 2019 Law Business Research Ltd Environment and Climate Change Law Review Third Edition Reproduced with permission from Law Business Research Ltd This article was first published in February 2019 For further information please contact [email protected] Editor Theodore L Garrett lawreviews © 2019 Law Business Research Ltd PUBLISHER Tom Barnes SENIOR BUSINESS DEVELOPMENT MANAGER Nick Barette BUSINESS DEVELOPMENT MANAGERS Joel Woods SENIOR ACCOUNT MANAGERS Pere Aspinall, Jack Bagnall ACCOUNT MANAGERS Sophie Emberson, Katie Hodgetts PRODUCT MARKETING EXECUTIVE Rebecca Mogridge RESEARCH LEAD Kieran Hansen EDITORIAL COORDINATOR Tommy Lawson HEAD OF PRODUCTION Adam Myers PRODUCTION EDITOR Simon Tyrie SUBEDITOR Helen Smith CHIEF EXECUTIVE OFFICER Paul Howarth Published in the United Kingdom by Law Business Research Ltd, London 87 Lancaster Road, London, W11 1QQ, UK © 2019 Law Business Research Ltd www.TheLawReviews.co.uk No photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation, nor does it necessarily represent the views of authors’ firms or their clients. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although
    [Show full text]
  • Climate Change, Coming Soon to a Court Near You: Climate Litigation in Asia and the Pacific and Beyond
    CLIMATE CHANGE, COMING SOON TO A COURT NEAR YOU CLIMATE LITIGATION IN ASIA AND THE PACIFIC AND BEYOND DECEMBER 2020 ASIAN DEVELOPMENT BANK CLIMATE CHANGE, COMING SOON TO A COURT NEAR YOU CLIMATE LITIGATION IN ASIA AND THE PACIFIC AND BEYOND DECEMBER 2020 ASIAN DEVELOPMENT BANK Creative Commons Attribution 3.0 IGO license (CC BY 3.0 IGO) © 2020 Asian Development Bank 6 ADB Avenue, Mandaluyong City, 1550 Metro Manila, Philippines Tel +63 2 8632 4444; Fax +63 2 8636 2444 www.adb.org Some rights reserved. Published in 2020. ISBN 978-92-9262-521-4 (print); 978-92-9262-522-1 (electronic); 978-92-9262-523-8 (ebook) Publication Stock No. TCS200027-2 DOI: http://dx.doi.org/10.22617/TCS200027-2 The views expressed in this publication are those of the authors and do not necessarily reflect the views and policies of the Asian Development Bank (ADB) or its Board of Governors or the governments they represent. ADB does not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of their use. The mention of specific companies or products of manufacturers does not imply that they are endorsed or recommended by ADB in preference to others of a similar nature that are not mentioned. By making any designation of or reference to a particular territory or geographic area, or by using the term “country” in this document, ADB does not intend to make any judgments as to the legal or other status of any territory or area. This work is available under the Creative Commons Attribution 3.0 IGO license (CC BY 3.0 IGO) https://creativecommons.org/licenses/by/3.0/igo/.
    [Show full text]
  • Complaint Against BP in Respect of Violations of the OECD Guidelines
    Complaint against BP in respect of violations of the OECD Guidelines Complainant: ClientEarth Fieldworks 274 Richmond Road Martello St Entrance London E8 3QW Company: BP p.l.c. 1 St James’s Square London SW1Y4PD NCP: UK National Contact Point for the OECD Guidelines for Multinational Enterprises Department for International Trade 3 Whitehall Place London SW1A 2AW Contact Persons: Sophie Marjanac, Climate Accountability Lead, ClientEarth ([email protected]) Sam Hunter Jones, Lawyer, ClientEarth ([email protected]) Tim Cooke-Hurle, Barrister, Doughty Street Chambers ([email protected]) ClientEarth is an environmental law charity that has staff in London, Brussels, Warsaw, Madrid, Beijing, Berlin and Luxembourg, and works to enforce laws for the protection of the environment around the world. 1 Executive summary 1. In this Complaint, ClientEarth alleges that BP’s current advertising misleads the public in the way that it presents BP’s low-carbon energy activities, including their relative scale to its fossil fuel extraction activities, the role of gas, as well as the global energy system and climate change. 2. This Complaint is concerned with the way in which BP communicates with the public and whether this corresponds to the reality of its business and products. Nonetheless, the backdrop to this Complaint is that BP’s plans to continue to grow its fossil fuel extraction business which has the potential to worsen the climate crisis and jeopardise the prospects of society making the required global energy transition and dramatically reducing greenhouse gas (“GHG”) emissions, in order to meet the goals of the Paris Agreement. 3.
    [Show full text]